On Tuesday, May 20, 2014, the 8th Circuit Court of Appeals denied both the plaintiffs’ and ABB’s petitions for rehearing in Tussey v. ABB, Inc. Without explanation, both the original panel of three judges and the court en banc, meaning all active judges of the 8th Circuit, declined to rehear the case.
As we previously laid out when the original decision came down ( see Tussey v. ABB Affirmed, Reversed, and Vacated in Part by 8th Circuit) ultimately this case is going to be appealed to the US Supreme Court, almost without a doubt by both the plaintiffs and by ABB. Because the US Supreme Court only hears about 100 cases out of 10,000+ appealed to them each year, the chances are slim that the case will be taken. On the other hand, they’ve recently shown interest in ERISA fiduciary matters by agreeing to hear an appeal of the 6th Circuit’s stock drop jurisprudence (see Supreme Court Will Hear Stock Drop Appeals) and their request for DOL input on the plaintiffs’ appeal in Tibble v. Edison (see Supreme Court Requests DOL Opinion in Tibble v. Edison Petition). We should expect an opinion in the stock drop case any time between now and the end of June.
If the Supreme Court declines to hear either party’s appeal in Tussey, then the case will ultimately be remanded back to the district court to re-decide the investment claims under an abuse of discretion standard. And in that scenario, the following issues will be considered final regardless of the remand: (1) Fidelity will have succeeded in defeating all claims against it, and (2) ABB will have have been found liable for paying excessive recordkeeping fees to Fidelity.